When the U.S. Supreme Court struck down a portion of the Defense of Marriage Act last year in United States v. Windsor, federal agencies scrambled to revise regulations and guidelines so that “marriage” and “spouse” were no longer defined to exclude same-sex marriages.  Initially, the Department of Labor (DOL) issued a public guidance document to clarify that the definition of spouse under the Family and Medical Leave Act (FMLA) covers same-sex spouses residing in states that recognize same-sex marriages.  Now, almost a year later, the DOL is updating its regulations to change the definition of spouse so that it applies to any legal same-sex marriage, regardless of whether the employee resides in a state that recognizes such marriages. 

Place of Celebration to Govern 

Under the current FMLA regulations, the definition of spouse is based on the state where the employee resides, not on the state where the employee was married.  Under this so-called “state of residence” rule, an employee who was legally married in a state that recognizes same-sex marriages but who lives in a state that does not recognize such marriages is unable to use FMLA leave to care for his or her same-sex spouse.  Under this notice of proposed rulemaking, the DOL changes the FMLA definition of spouse from a “state of residence” rule to a “place of celebration” rule based on where the marriage was entered into.  By utilizing the “place of celebration” rule, all legally married couples, whether opposite or same-sex, or whether married in a ceremony or by virtue of common law, will be entitled to FMLA rights regardless of where they live. 

FMLA To Apply in Additional Circumstances 

The proposed change in the FMLA regulations defining a spouse expands the circumstances under which eligible employees will be entitled to FMLA leave, including: 

  • FMLA leave to care for a same-sex spouse with a serious health condition;
  • Qualifying exigency leave related to a same-sex spouse’s covered military service;
  • Military caregiver leave related to a same-sex spouse’s military injury or illness;
  • FMLA leave to care for a stepchild who is the child of the same-sex spouse, even when the employee does not stand in loco parentis; and
  • FMLA leave to care for a stepparent who is the parent of the same-sex spouse, even when the stepparent never stood in loco parentis to the employee. 

Despite this expansion in coverage, the practical effect of this change will likely be minimal for most employers.  Employers in states that recognize same-sex marriages are already obligated to provide FMLA leave in the above-mentioned situations.  Therefore, the only expansion of FMLA coverage is for those employers with employees who reside in states that do not recognize same-sex or common law marriages who soon will be entitled to use FMLA in these circumstances under the amended definition.  The proposed amendment would not extend FMLA rights to an employee’s partner in a civil union as civil unions for both opposite-sex and same-sex couples are not considered marriages under the FMLA. 

Employers May Request Documentation 

Employers may continue to request a marriage license or other reasonable documentation or statement of a family relationship as long as that requirement is applied in a non-discriminatory manner.  In other words, employers may ask for supporting marriage or familial documentation from employees in same-sex relationships if they also ask for such documentation from employees in opposite-sex relationships. 

Comment Period Closes August 11, 2014 

Interested parties may submit comments regarding the proposed changes to the DOL no later than August 11, 2014.  Additional information may be found on the DOL’s website.